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McCullom Lake brain cancer plaintiff will get new trial

Published: Thursday, Oct. 10, 2013 9:22 a.m. CDT • Updated: Thursday, Oct. 10, 2013 11:43 p.m. CDT

(Continued from Page 1)

After a 2½-year appeal, McCullom Lake brain cancer plaintiff Joanne Branham will get a new trial.

A Pennsylvania appeals court on Wednesday overturned a judge’s decision to dismiss the case and grant judgment in favor of Rohm and Haas, whose Ringwood specialty chemical plant is accused in 33 lawsuits of causing a cluster of brain and pituitary tumors in McCullom Lake and the neighboring Lakeland Park subdivision in McHenry.

And because the judge has since been reassigned over an ethical gaffe, Branham will get a new one.

The case of Branham, who lost her husband, Franklin, to glioblastoma multiforme brain cancer in 2004, was the first to go to trial. She sued in 2006, along with two of her former neighbors, who were diagnosed with an even rarer type of brain tumor.

Plaintiffs’ attorney Aaron Freiwald hailed the ruling Thursday. The case is being heard in Pennsylvania because the world headquarters of Rohm and Haas, now a subsidiary of Dow Chemical Co., is based in Philadelphia.

“This is a terrific result, I think the correct and just result, and we are very excited about returning to the courtroom, and that Mrs. Branham and the other families have their day in court,” Freiwald said.

Rohm and Haas’ legal counsel did not return requests for comment Thursday.

The lawsuits allege that carcinogenic vinyl chloride and related compounds from the plant’s operations fouled residents’ air and groundwater.

While Rohm and Haas acknowledges that a plume of volatile organic compounds has leaked into groundwater from decades of dumping by the previous owners into an unlined 8-acre waste pit, they vehemently deny allegations that they reached or sickened residents. Past and present owners have been working for the past two decades to clean up the contamination plume.

Branham’s case went to trial in September 2010. Five weeks into the trial, Judge Allan Tereshko angrily ended it over the expert testimony of plaintiffs’ epidemiologist Richard Neugebauer.

After a two-day cross-examination in which the epidemiologist’s testimony crumbled, Tereshko ended the trial, calling Neugebauer’s report “an attempt to deceive the court” and “tantamount to fraud.” Tereshko in April 2011 disregarded Freiwald’s request for a mistrial and sided with Rohm and Haas, dismissing the case.

The two appellate judges who issued Wednesday’s ruling concluded that Tereshko clearly erred when he granted Rohm and Haas nonsuit, because Freiwald had three more experts to call. Nonsuit is typically granted when a judge rules – after the plaintiff rests – that the evidence presented does not support the claim.

The appellate court also reversed Tereshko’s decision to strike the expert testimony of Sidney Finkelstein, a neuropathologist who testified that tissue samples from 10 of the plaintiffs share the exact same chromosomal damage and therefore a common exposure.

Tereshko originally had rejected Rohm and Haas’ pretrial motion to dismiss, concluding that Finkelstein’s report was based on accepted scientific principles, but changed his mind when he granted Rohm and Haas nonsuit. Finkelstein’s report has since been published in a peer-review scientific journal.

Freiwald called the readmission of Finkelstein’s report a significant victory. The court upheld Tereshko’s right to strike Neugebauer’s testimony.

“We have plenty of evidence that this is a brain cancer cluster, and plenty of evidence that the company is responsible for Mr. Branham’s brain cancer, and the other [plaintiffs’] tumors, and that’s going to be what this trial is all about,” Freiwald said.

The appellate court denied Freiwald’s motion for a new judge, but the ruling has since become moot. Tereshko earlier this year was transferred to family court after a separate appellate court panel chastised him for not disclosing his wife’s employment with a law firm that represented an insurance company he ruled in favor of in a 2011 case.

One of the 33 plaintiffs, Darlene Jackson, is the older sister of County Board Chairwoman Tina Hill, R-Woodstock.

Jackson was diagnosed in 2009 with a pituitary tumor more than an inch wide. They grew up in Lakeland Park, and Hill had three other childhood acquaintances fall ill and sue.

Hill pushed several years ago before her chairmanship for a fresh look at the cases. She bucked county leadership and health officials, who since the first lawsuits had worked to downplay any connection between the chemical plant and any illnesses.

Northwest Herald investigations found significant problems with the county’s efforts, such as a scientifically flawed epidemiology analysis and flawed attempts to reach out to other agencies for help.

The individual lawsuits originally included neighboring Modine Manufacturing Co., which records show contributed the industrial solvent trichloroethylene to the contamination plume. Racine, Wis.-based Modine denied any culpability, but settled out of court with plaintiffs in 2008 for undisclosed sums and paid to set up a medical monitoring program for McCullom Lake residents.

Tests of McCullom Lake’s wells and air in 2010 and 2011 – paid for by Rohm and Haas – did not find the contaminants in well water, and found air contaminants well below federally accepted levels.

About this series

"Coincidence or Cluster?" is the Northwest Herald's ongoing investigation of the McCullom Lake brain cancer lawsuits.

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